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2011(1) Bankmann 452 (Cal.)
CALCUTTA HIGH COURT
Ashim Kumar Roy, J.
Ranjan Sengupta —Petitioner
versus
State of Bengal and Ors. —Respondents
Crl R No. 3166 of 2009
Decided on 1.2.2010
Counsel for the Parties:
For the Petitioner:Mr. Ayan Bhattacharjee, Advocate.
For the Opp. Party No. 2:Mr. Angshuman Chakraborty, Advocate.
For the State:Mr. Aloke Roy Chowdhury, Advocate.
IMPORTANT POINTS
(1) In a prosecution under Section 138 NI Act where complainant was a firm and its partner who filed complaint retired a new partners could be substituted to proceed with complaint.
(2) Where trial in a case under Section 138 NI Act commenced as regular summons case and not in a summary way, bar under Section 326(3) CrPC will not be attracted.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Prosecution for dishonour of cheque—Territorial jurisdiction—Cheque was presented in bank for collection situated within territorial jurisdiction of court where complaint was filed —Demand notice was from a place which was also within the jurisdiction of Court—Demand notice was served upon accused and address was within jurisdiction of court—Court had jurisdiction to hold trial of petitioner. (Para 6)
(ii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Payee was a firm and complaint was filed by firm through its partner—Partner retired—Whether complaint was liable to abate? No.
Held: In a case relating to an offence punishable under Section 138 of the Negotiable Instruments Act where the payee, who will be the complainant, is a juristic person, in this case a partnership firm, ought to be represented by any natural person, who may be anyone of its partner or any duly authorized person and such partnership firm can always be represented at the different stage of proceeding by different persons, viz., by any of its partners or by any authorized representative. There is no law the person who represented a partnership firm at the initial stage shall have to represent it will the end of trial, even when such person lost is authority due to his retirement or for any other reasons. It is highly preposterous to suggest that merely because the person who initially represented the partnership firm has retired as a partner then in that case the retiring partner cannot be substituted by the existing partners or by any authorized person of the partnership firm. In this connection reliance may very well be placed in the case of Associated Cements v. Kesvand, 1998 SCC (Cr) 475. (Para 7)
(iii) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 326(3) —Prosecution for dishonour of cheques—Petition to quash prosecution on ground that Magistrate had no jurisdiction to proceed on basis of evidence recorded by his predecessor—Case was tried as summons trial case and not as summary trial—Entire evidence was recorded at different stages by different Magistrates—Bar under Section 326(3) CrPC was not attracted. (Para 8)
Ashim Kumar Roy, J.—The petitioner invoking Section 482 of the Code of Criminal Procedure challenged his prosecution under Section 138 of the Negotiable Instruments Act and sought for quashing of the same.
2. Mr. Ayan Bhattacharjee, learned Advocate appearing on behalf of the petitioner contended as follows:
(a) The Court of the learned Chief Judicial Magistrate. Alipore, 24, Parganas (South) where the aforesaid criminal proceeding is pending against the petitioner is lacking of jurisdiction as no part of cause of action arose within its territorial limit.
(b) The payee of the cheque Creative Construction, a partnership firm filed the complaint being represented by one of its partner Debashis Mukherjee and after his retirement as there is no legal scope to substitute him the impugned proceeding instituted at his instance, stands abated.
(c) In view of specific bar contained in Section 326(3) of the Code of Criminal Procedure, the learned Magistrate has no jurisdiction to proceed against the petitioner on the basis of the evidence recorded by his predecessors in office.
3. Mr. Bhattacharjee in support of his contention relied on a decision of the Hon’ble Supreme Court in the case of Harman Electronics Private Limited & Anr. v. National Panasonic India Private Limited.1
4. On the other hand, Mr. Angshuman Chakraborty, the learned counsel appearing on behalf of the complainant opposite party vehemently opposed the prayer for quashing. According to him all the contentions of Mr. Bhattacharjee are absolutely baseless and without any substance. He further submitted the case in question relates to an offence punishable under Section 138 of the Negotiable Instruments Act for dishonour of a cheque of Rs.24,00,000 and was instituted in the year 1999 but due to the dilatory tactics adopted by the petitioner, although the examination of the accused under Section 313 of the Code was completed long back but till date the trial could not have been concluded. He prayed for dismissal of this criminal revision.
5. I have given my anxious and thoughtful consideration to the rival submissions of the parties. Perused the impugned order as well as the lower Court records.
6. Now, having regards to the materials on record I find the contention of the petitioner that not a single event took place out of which cause of action arose, empowering the Court concerned to take cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act within its territorial limit has no foundation to stand. In the case of Harman Electronics Private Limited & Anr. v. National Piinusonic India Private Limited (supra), the Apex Court held that in a case relating to an offence punishable under Section 138 of the Negotiable Instruments Act, issuance of notice would not by itself give rise to cause of action but the communication of the notice would i.e. the receipt of notice would ultimately give rise to the cause of action for filing of the complaint, when in spite thereof the cheque amount is not paid. In the said case the cheque was dishonoured at Chandigarh and thereafter demand notice was issued by the complainant from New Delhi which was admittedly served upon the accused at Chandigarh. In such circumstances the Apex Court held the concerned Court situated at New Delhi, the place from where the demand notice was issued has no territorial jurisdiction and accordingly directed the case should be transferred to the concerned Court at Chandigarh. However in the present case the complainant presented the cheque for encashment through its banker United Bank of India, Parnasree Branch, issued the demand notice from his offence situated at Behala and the demand notice was served upon the accused at his office situated at 7, Apurba Mitra Road, Kolkata-700026. All the aforesaid places are situated within the territorial limit of the learned Court below where the impugned proceeding is pending against the petitioner. Therefore, there cannot be any c
